Governor Kulongoski today requested an opinion from the Department of Justice as to the legality of same-sex marriage in Oregon.
In responding to the Governor's request, I have developed the following basic questions upon which we will focus our efforts.
How do Oregon's existing statutes define marriage?
Do Oregon's existing statutes prohibit same-sex marriages?
Do Oregon's existing statutes permit same-sex marriages?
2. Oregon Constitution.
Does the Oregon Constitution require Oregon to allow same-sex partners to marry?
3. Legal effect of same-sex marriages carried out in other jurisdictions.
What legal effect, if any, must the State of Oregon and its agencies give to same-sex marriages conducted in other states? To marriages conducted in foreign countries? Specifically, if a same-sex couple married in another forum relocates to Oregon, under what circumstances and for what purposes would the State of Oregon and its agencies be compelled by the Federal Constitution's Full Faith and Credit clause to give legal effect to their marriage?
4. Remedies assuming that Multnomah County is acting unlawfully.
Assuming that we conclude that Multnomah County's actions are in whole or in part unlawful under Oregon law, what legal remedies, if any, are available, and who can invoke those remedies? If Oregon law bars same-sex marriages, would a public official who nevertheless issued a marriage license commit any crime?
Answering these questions requires careful analysis of Oregon law and the Oregon Constitution. We will endeavor to address these issues as quickly as we can.